## Facts

- Donald A. Harney, a freelance photographer, took a 2007 photograph in Boston depicting a father carrying his daughter piggyback as they exited a Palm Sunday church service.
- The father was later identified as Christian Karl Gerhartsreiter (known publicly as “Clark Rockefeller”); the photograph was widely circulated during a subsequent abduction investigation.
- Sony Pictures Television and A&E produced a television movie about Gerhartsreiter and included a newly created image similar in general pose and composition to Harney’s photograph but different in various details.
- Harney did not consent to the use of his work and sued Sony and A&E for copyright infringement based on the recreated image.
- The district court granted summary judgment to defendants, concluding no reasonable jury could find substantial similarity between the works in protectable elements.

## Issues

1. Whether a reasonable jury could find Sony’s recreated image substantially similar to Harney’s photograph in protectable expression, sufficient to establish copyright infringement.
2. Whether similarities limited to unprotectable elements of a photograph (factual subject matter and commonplace pose) can satisfy the substantial-similarity requirement.

## Decision

- The First Circuit affirmed summary judgment for Sony and A&E.
- The court held that no reasonable jury could find substantial similarity in protectable expression between Harney’s photograph and Sony’s recreated image.
- The court concluded that the meaningful overlap between the images concerned unprotectable content—primarily the father-daughter piggyback pose and general subject arrangement—rather than original expressive choices.
- Because the alleged copying did not extend to protectable elements (including distinctive contextual and background features present in the original), defendants did not infringe Harney’s copyright as a matter of law.

## Legal Principles

- Copyright protects original expression, not facts, ideas, or other unprotectable content.
- In substantial-similarity analysis, courts must separate unprotectable elements (including factual subject matter, commonplace poses, and scènes à faire) from protectable expressive choices.
- A photograph may contain protectable expression in choices such as composition, framing, viewpoint, and inclusion of contextual details, but infringement requires substantial similarity in those protectable elements.
- Similarity confined to unprotectable features is insufficient to establish infringement and may be resolved on summary judgment when no reasonable jury could find substantial similarity in protected expression.

## Conclusion

The court affirmed judgment for the defendants because the recreated image shared only unprotectable aspects of the original photograph, and any protected expressive elements in Harney’s work were not substantially copied.


Harney v. Sony Pictures Television, Inc., 704 F.3d 173 (1st Cir. 2013)